Lots of unknowns with vaccine mandates

An Idaho legislative hearing in Boise on Wednesday didn’t clarify much about President Joe Biden’s recent COVID-19 vaccine mandate, other than that there’s a lot of legal uncertainty about the action.

The interim Committee on Federalism spent much of the day discussing the mandate. It heard several presentations and took in-person and remote testimony from more than 30 people around the state.

Jon Jukuri, a labor policy adviser with the National Conference of State Legislatures, started things off by pretty much guaranteeing that Biden’s mandate will end up in court.

“I can tell you with some degree of confidence it’s destined for the courtroom,” he said. “At least two dozen states are considering legal action.”

They’ll have to wait a bit before they can file any lawsuits, though. Jukuri said it will be at least three to five weeks before the Occupational Safety and Health Administration publishes emergency rules implementing the private sector vaccine mandate.

Until that happens, he said, states don’t have a specific regulation they can challenge in court. And once lawsuits are filed, it could delay implementation of the regulation for several more months.

Chief Deputy Brian Kane with the Idaho Attorney General’s Office noted that Biden issued two executive orders Sept. 9. One requires federal employees to be vaccinated against COVID-19. The other requires all employees of federal contractors to be vaccinated; that order also applies to any health care providers or facilities that receive Medicare or Medicaid funding.

Biden made a third announcement as well, Kane said, “and this is the one that has garnered the most attention. He directed the Department of Labor to issue an emergency temporary standard under OSHA to require vaccination (or weekly testing) of all employees in businesses with 100 or more employees.”

An emergency temporary standard allows the agency to bypass the normal rule-making process, which typically takes several months, if not years. It’s intended to address situations where employees face “grave danger” from exposure to toxic substances or unsafe conditions, and where an emergency order is needed to protect them.

Jukuri said OSHA has issued fewer than a dozen emergency temporary standards since Congress approved the Occupational Safety and Health Act in 1970.

“It’s a rule-making power OSHA has rarely used,” he said. “Prior to the pandemic, it hadn’t been used since 1983.”

The agency has a poor record when it comes to surviving legal challenges to these emergency standards, Jukuri said. It’s lost four of the last five times they’ve been used, and a COVID-19 mandate would likely make it five of six.

“OSHA will likely need to show that COVID-19 in the workplace poses that grave danger to workers and that making large employers mandate proof of a vaccine or weekly negative tests is necessary to protect everyone from contracting the virus at work,” he said. “We think it highly likely that the courts will ultimately decide whether a vaccine and testing mandate meets these two conditions.”

The last time OSHA issued an emergency standard, in 1983, it dealt with asbestos in the workplace.

In that case, Kane said, the agency relied on nine volumes of evidence and “years and years” of scientific studies to justify its decision — and still lost the lawsuit.

If OSHA uses its emergency authority to implement a COVID-19 vaccine mandate, he said, “its discretion is not unfettered. The court would take a hard look at what the agency has analyzed and what the outcome is. … One of the questions as we move forward is how does the agency meet that standard when the outcome is somewhat predetermined based on the president’s directive?”

Kane also noted that OSHA historically has issued safety regulations on an industry-by-industry basis. It’s unclear whether it has the authority to expand that to a broad-based mandate that would apply to any industry.

“But we haven’t seen the standard yet, so this is all just guesswork,” he said.

Given that Idaho is one of 22 states that haven’t adopted an OSHA state plan, Jukuri said the vaccine mandate likely wouldn’t apply to state or local government workers.

However, in response to a question from Rep. Wendy Horman, R-Idaho Falls, Kane said the mandate probably would apply to school district employees, if the school accepted Medicaid reimbursements for special needs students.

Moreover, even if states successfully challenge the private sector mandate, Kane suggested they’ll likely have a harder time challenging the executive orders addressing federal workers and federal contractors.

“It may be more difficult for states to reach into those areas,” he said.

Most of the people who testified during Wednesday’s hearing were opposed to Biden’s mandate and asked lawmakers to do what they can to protect individual liberties.

One of the ideas presented during the hearing was to pass legislation defining an individual’s vaccination status as medically protected information, so employers couldn’t ask about it.

The committee will continue its discussion of the Biden mandates — and what the state can and should do about them — during its next meeting Tuesday, as well as a third meeting Oct. 4.

Spence may be contacted at bspence@lmtribune.com or (208) 791-9168.